Citation Nr: 9901709
Decision Date: 01/22/99 Archive Date: 02/01/99
DOCKET NO. 93-16 711 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for impaired vision,
including as a result of exposure to Agent Orange.
2. Entitlement to service connection for a skin disorder,
including as a result of exposure to Agent Orange.
3. Entitlement to service connection for a sleep disorder,
including as a result of exposure to Agent Orange.
4. Entitlement to service connection for a urinary tract
disorder, including as a result of exposure to Agent
Orange.
REPRESENTATION
Appellant represented by: West Virginia Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Miyake, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1965 to
October 1967 with service in the Republic of Vietnam.
This appeal is before the Board of Veterans’ Appeals (Board)
from a September 1994 rating decision of the Huntington, West
Virginia Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied the benefits sought. In July 1997,
the veteran testified before a traveling Member of the Board.
In October 1997, the Board remanded the case for further
development.
The veteran has filed claims of service connection for
peripheral neuropathy and a headache disorder. These claims
have not been fully developed for appellate review. They are
referred to the RO for any appropriate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. Based on his service in the Republic of Vietnam during the
Vietnam era, the veteran is presumed by law to have been
exposed to herbicidal agents, including Agent Orange.
3. The veteran has not submitted any competent evidence to
show that he has impaired vision, a skin disorder, a sleep
disorder, and a urinary tract disorder which were incurred
in or aggravated by service, or due to exposure to Agent
Orange in service.
CONCLUSION OF LAW
The claims of service connection for impaired vision, a skin
disorder, a sleep disorder, and a urinary tract disorder
including as a result of exposure to Agent Orange are not
well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116,
5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
Service medical records show that the veteran’s distant
vision was 20/20 bilaterally in his preinduction examination
report in September 1965 and separation examination report in
October 1967. The records are also negative for any
complaints of, treatment for, or a diagnosis of impaired
vision, a sleep disorder, a urinary tract disorder, or a skin
disorder.
Treatment reports from Williamson Memorial Hospital, dated
from May 1968 to July 1978, and from July 1996 to
January 1997 show that in May 1978 the veteran reported
frequency of, and burning on, urination off and on for the
last week. In July 1996, he reported no visual problems.
Treatment reports from the Williamson-Appalachian Regional
Hospital, dated from December 1986 to January 1998; Logan
General Hospital, dated in 1989; Castro Clinic, dated in
March 1982; and James W. Coleman, M.D., dated from March 1988
to June 1998, show that the veteran was seen for disorders
unrelated to his claims.
VA outpatient treatment reports from June 1994 to
September 1997 show that in January 1995 the veteran
complained of blurred vision and difficulty focusing his
eyes.
On VA examination in May 1996, examinations of the eyes and
skin were within normal limits. Genitourinary system was
intact.
At a hearing before a traveling Member of the Board in
July 1997, the veteran essentially testified that he suffered
from a sleep disorder, impaired vision, a urinary tract
disorder, and a skin disorder all as a result of exposure to
Agent Orange in Vietnam.
A February 1998 decision from the Social Security
Administration shows that the veteran is receiving benefits
based on disability including severe migraine headaches.
II. Analysis
The threshold question is whether the veteran has met his
initial burden of presenting a well-grounded claim. If he
has not, then the claim must fail and there is no further
duty to assist in the development of the claim. 38 U.S.C.A.
§ 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990).
A well-grounded claim requires more than an allegation; the
claimant must submit supporting medical evidence.
Furthermore, the evidence must justify a belief by a fair and
impartial individual that the claim is plausible. Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992). For a well-grounded
claim of service connection, there must be competent evidence
of a current disability (a medical diagnosis), of inservice
incurrence or aggravation of a disease or injury (lay or
medical evidence), and of a nexus between the inservice
injury or disease and the current disability (medical
evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see
also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997).
Service connection is warranted for disability resulting from
disease or injury that either began in or was aggravated by
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Alternatively, under 38 C.F.R. § 3.303(b), service connection
may be awarded for a “chronic” condition when: (1) a
chronic disease manifests itself and is identified as such in
service (or within the presumptive period under 38 C.F.R.
§ 3.307) and the veteran presently has the same condition; or
(2) a disease manifests itself during service (or during the
presumptive period) but is not identified until later, there
is a showing of continuity of symptomatology after discharge,
and the medical evidence relates the symptomatology to the
veteran’s present condition. Rose v. West, 11 Vet. App. 169
(1998); See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997).
Service connection may also be granted for a disease
diagnosed after service discharge when all evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
If a veteran had 90 days or more of continuous service, and
certain chronic diseases become manifested to a degree of 10
percent or more following discharge from service, such
disease will be presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
The laws and regulations pertaining to Agent Orange exposure
provide for a presumption of service connection due to
exposure to herbicide agents for veterans who have one of
several diseases and served on active duty in Vietnam during
the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R.
§ 3.307(a)(6). A disease associated with exposure to certain
herbicide agents listed in 38 C.F.R. § 3.309(e) will be
considered to have been incurred in service under the
circumstances outlined in that section, even though there is
no evidence of such disease during the period of service. No
other condition other than one listed in 38 C.F.R. § 3.309(a)
will be considered chronic. 38 U.S.C.A. § 1116; 38 C.F.R.
§ 3.307(a), (d). A veteran who, during active military,
naval, or air service, served in the Republic of Vietnam
during the Vietnam era, and has a disease listed at 38 C.F.R.
§ 3.309(e), shall be presumed to have been exposed during
such service to an herbicide agent containing dioxin, such as
Agent Orange, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. 38 C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service connected if the requirements of 38 U.S.C.A.
§ 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though
there is no record of such disease in service, provided that
further that the rebuttable presumption provisions of
38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied:
chloracne or other acneform disease consistent with
chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's
lymphoma, acute and subacute peripheral neuropathy, porphyria
cutanea tarda, prostate cancer, respiratory cancers (cancers
of the lung, bronchus, trachea, or larynx), and soft-tissue
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s
sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).
The Secretary of Veterans Affairs formally announced in the
Federal Register, on January 4, 1994, that a presumption of
service connection based on exposure to herbicides used in
Vietnam was not warranted for “any other condition for which
the Secretary has not specifically determined a presumption
of service connection is warranted.” 59 Fed. Reg. 341
(1994). Nonetheless, the United States Court of Appeals for
the Federal Circuit has determined that the Veterans’ Dioxin
and Radiation Exposure Compensation Standards Act, Public Law
No. 98-524, Section 5, 98 Stat. 2725, 2727 through 29 (1984)
does not preclude a veteran from establishing service
connection with proof of actual direct causation. See
Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Evidentiary assertions by the veteran must be accepted as
true for the purposes of determining whether a claim is well
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993). If a reasonable doubt
arises regarding service origin, or any other point, it
should be resolved in the veteran's favor. 38 U.S.C.A.
§ 5107; 38 C.F.R. § 3.102.
A review of the evidentiary record shows that the veteran
served in the Republic of Vietnam and, therefore, is entitled
to a presumption of Agent Orange exposure. Nevertheless, the
veteran has not presented any competent medical evidence to
show that he has any of the disorders specifically listed at
38 C.F.R. § 3.309(e).
Accordingly, he is not entitled to a presumption for any of
the claimed disorders as being etiologically related to
exposure to herbicide agents used in Vietnam.
As noted above, the threshold Caluza requirement is that
there must be competent evidence of current disability.
Here, there is no competent medical evidence that the veteran
currently has impaired vision, a skin disorder, a sleep
disorder, or a urinary tract disorder. His service medical
records are negative for any reference to these disorders.
Private treatment reports show that in May 1978 he reported
frequency and burning of urination off and on for the last
week; but there is no evidence of current chronic urinary
tract disability. He also complained in January 1995 of
blurred vision and difficulty focusing his eyes; no chronic
disorder was diagnosed. Nevertheless, the remaining
postservice VA and private treatment records are negative for
any reference to the disorders at issue. The Board notes
that no medical evidence has been presented to show that the
veteran now has the claimed disorders. Without competent
evidence of current disability, the veteran has not submitted
well-grounded claims. See Caluza, 7 Vet. App. at 506.
While the veterans asserts that he has the claimed
disabilities and that they had their onset in service, or
alternatively are due to his exposure to Agent Orange in
service, his own assertions and testimony that he has the
disorders do not suffice to make the claims well grounded
because, as a layman, he is not competent to render a medical
opinion on the diagnosis or etiology of a condition because
he has no medical expertise. Layno v. Brown, 6 Vet. App.
465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).
ORDER
The claims of service connection for impaired vision, a skin
disorder, a sleep disorder, and a urinary tract disorder,
including as a result of exposure to Agent Orange are denied.
George R. Senyk
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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